R v Yavuz

Supreme Court of NSW|2018-04-23|Before: Davies J

Solicitors: Office of the Director of Public Prosecutions (NSW) (Crown) Matouk Joyner Lawyers (Accused) File Number(s): 2015/335208

Judgment

The accused is charged with murdering Charlie El-Azzi on 13 November 2015.
The Crown case, in summary, is that the accused was sitting in a passenger seat of a car with his girlfriend. The deceased walked up to the passenger side window and then walked around the vehicle looking at it. The accused then asked the deceased if he was okay, to which the deceased replied: Yeah, I'm okay, I'm fucking okay. I'm walking on the footpath. What the fuck's your problem, bro? The accused said: I don't have a problem, I'm just sitting here with my missus, man.
Thereafter, the deceased threw two punches at the accused through the open car window and they connected with the accused's head. The accused got out of the car and, when the two men were on the nature strip, the deceased proceeded to attack the accused. The altercation proceeded for a short period of time until the accused managed to get away from the deceased. The accused then made his way to his own home on foot and at some point the deceased went to his house which was near to that of the accused.

The triple 0 call and the discharge of the jury

One of the significant witnesses to the stabbing of the deceased was Youness Elmrabt. Mr Elmrabt was a plumber's apprentice who was working at the adjoining property. In his evidence, Mr Elmrabt said that he called triple 0 from his mobile phone, asked for the police, and told the operator what had happened.
Mr Elmrabt also gave evidence that, after the fighting between the accused and the deceased stopped on the first occasion, the accused ran back towards Roberts Road: And while he was running back he was screaming towards the other man that he would come back and he would kill him and that he knows where he lives.
Mr Elmrabt gave evidence of what was said when the man returned: Q. Do you remember what he was screaming? A. Yes. He was screaming, "I told you I would come back. I told you I was going to come back and I was going to kill you" and kept on telling him and then he told him, "Come and say sorry like a man" and he kept repeating that and repeating that and told him, "Come, kneel down and say sorry like a man".
Mr Elmrabt was cross-examined by Mr Littlemore QC for the accused. Mr Littlemore challenged Mr Elmrabt's honesty and credibility. The detail of the challenge is set out in R v Yavuz (No. 2) [2017] NSWSC 1705.
As that judgment made clear, on the sixth day of the trial and at the end of the Crown case the Crown sought to tender a DVD containing a triple 0 call made by Mr Elmrabt together with a transcript of that call.
I refused the Crown's application to tender the triple 0 call and transcript with the result that the Crown sought a discharge of the jury. I acceded to that application and the reasons for so doing are set out in R v Yavuz (No. 2).
During the argument in relation to a discharge the following exchange occurred: HIS HONOUR: If I was minded to discharge the jury I think it would come with costs consequences. Do you want to say anything about that? CROWN PROSECUTOR: Your Honour, that's entirely a matter for the Court. The Crown submits that the failure to obtain the triple 0 call was not founded in mala fides or indeed a lack of diligence in the inquiries. The request was made. There must be, with the best will in the world, some entitlement to the officer in charge to rely on the information that she gets back. HIS HONOUR: There was certainly no mala fides involved. Whether there was a lack of diligence is a moot point. I gave a judgment in the matter of Carbone where the Crown failed to make arrangements for a witness to come, which resulted with the trial being adjourned. I don't know whether you are familiar with that where I dealt with this issue of costs. It seems to me, on the face of what I have heard, that there was a failure of due diligence because Mr Elmrabt clearly indicated there was a call and it was ignored.
The accused now seeks an order that the proceedings be stayed until costs thrown away by the discharge of the jury are paid by the Crown. Those costs are said to total $112,090 made up as follows: Mr Littlemore Ms Bewsher Matouk Joyner Lawyers Total Costs Pre-Trial Court appearances - - $2,525 Conferences Counsel & Client $3,000 $1,500 $2,475 Preparation (1/2) $8,400 $3,000 $6,000 Days in Court - trial (7 days) $36,000 $6,000 $12,000 Cancellation (3 days not sit) $18,000 $3,000 Total $65,400 $13,500 $23,000 $101,900 GST $6,540 $1,350 $2,300 $10,190 TOTAL $71,940 $14,850 $25,300 $112,090

The trial commenced on 27 November 2017. On that day the solicitor for the accused had a telephone conversation with the solicitor from the DPP in which the accused's solicitor requested a copy of the triple 0 call made by Mr Elmrabt. The solicitor received an email from the DPP attaching a transcript of two triple 0 calls, those made by Mirna El Azzi and the other by Sevdail Ramadani.
The trial re-commenced with a new jury on 28 November. On 29 November Mr Elmrabt gave evidence and was cross-examined. When he asserted that he had made a triple 0 call Mr Littlemore called for the transcript or record of that call. The Crown Prosecutor replied: No, I can't produce it now, your Honour, but I'll make further enquiries.
On Monday 4 December, the sixth day of the trial, the Crown said that further enquiries were successful and that a copy of the triple 0 call was available. The Crown said that it had been served on the previous Friday.
The following day the Crown called Detective McCann, the officer in charge of the case. She gave evidence that a computer request was made through iAsk to obtain all triple 0 calls with respect to the matter. She received a file which contained the two calls already referred to. She was asked if she made any further enquiries but she said that she did not. She assumed that they had sent all that they had. She only enquired further after Mr Elmrabt had given his evidence and the call had been made for the transcript and the recording of the call.
At the end of her cross-examination she gave the following evidence in answer to questions from me: Q. Detective, after a matter like this is set down for trial is it your responsibility to make sure all the evidence is in or is it somebody from the DPP? A. No, I'd say it's my responsibility, I'm the officer in charge. Q. Did you go back and read Mr Elmrabt's statement made on 13 November 2015? A. Yes, I did. Q. And that says, doesn't it, in paragraph 21, "At 1.54pm I called triple 0 from my mobile." He talked about that and he says, "I've checked my phone and I know I was on the phone for 9 minutes and 51 seconds." A. Yes, it does. Q. So you've known that since Mr Elmrabt made the statement on 13 November 2015? A. Yes. Q. Despite only getting the two calls from Mrs El Azzi and the other gentleman; and in the face of that you didn't make any other inquiry until last week? A. I have to fall on my sword there, that's correct. I thought I received all the triple 0 calls. I just I can't I didn't know where like, if he had made the call I wasn't like, he said it in his statement. I just I never received it.

Submissions

The accused submitted that there were statutory requirements on the Crown to make available the evidence on which the Crown would rely. Reference was made to sections 75, 141, 142(1)(j), 147 and 148 of the Criminal Procedure Act 1986 (NSW). In addition, there was an obligation under the ODPP Guidelines in relation to disclosure by prosecutors.
The accused pointed to the importance of the particular evidence of the triple 0 call by Mr Elmrabt, something which the Crown acknowledged at the time the Crown sought to tender the evidence. The accused then submitted that the evidence was not served in due time as a result of the fault of the Crown although no allegation of mala fides was made.
The accused submitted that the Crown's fault in that regard led to unfairness on him because he was not in a position again to fund legal expenses of another trial. Finally, the accused drew attention to the legal principles that applied to such an application, particularly those set out in R v Carbone (No. 2) [2017] NSWSC 346.
The Crown submitted that the facts in the present case differed markedly from the facts in Carbone and in R v Michael John Issakidis [2015] NSWCCA 834. The Crown pointed out that in Issakidis, the accused was facing his fourth trial.
The Crown submitted that the omission to serve the triple 0 call, whilst most regrettable, was not something which could be categorised as delinquent, unconscionable or grossly unfair. It involved no mala fides. In that way, the case was distinguishable from cases like Carbone and other cases referred to in that judgment.
The Crown submitted that the costs sought are unreasonable. It was submitted that there was no need for both senior and junior counsel as the matter was not overly complex. The Crown pointed to the first discharge of the jury as a result of the accused's senior counsel's opening. The Crown submitted that the costs of preparation were not thrown away because it was a requirement for any trial and would not need to be undertaken afresh.

Nature of the Crown's fault

In Carbone (No. 2) I discussed the various authorities. It is not necessary to repeat all that I said there. It is sufficient to note the most recent authoritative statement about what is required to obtain a stay until costs are paid in Lee v Attorney-General for NSW [2017] NSWCCA 27, where Hoeben CJ at CL (with whom Latham and Price JJ agreed) said: [120] There is no longer an issue that the Court has power in an appropriate case to order a stay of criminal proceedings until the prosecutor pays the legal costs of the accused. In R v Curtis [2014] NSWSC 1582 at [24] - [27] Davies J summarised the applicable principles: … [26] It is necessary, however, to point to some fault on the part of the prosecution. Unfairness cannot be established without proof of fault: Petroulias v The Queen [2007] NSWCCA 154; 176 A Crim R 302 at [25]; R v Selim [2007] NSWSC 154. The power to stay proceedings in circumstances such as for the payment of costs is only to be exercised in the most exceptional of circumstances: Petroulias at [17]. [27] It seems to me, therefore, that if some delinquency, unconscionability or unfairness on the Crown's part can be demonstrated the Court in the control over its own processes would have the power to stay the trial until such time as the costs are paid." [121] In Regina v Fisher [2003] NSWCCA 41; 56 NSWLR 625 at [7] Santow JA (with whom Smart AJ agreed) said: [7] ...The power of granting a stay against the Crown until wasted costs are paid is to be used only for the rare and extreme case of gross unfairness on the part of the Crown. That is to say, unfairness which, exceptionally, can override the public interest in pursuing a criminal prosecution, though to be weighed against what is the urgency of bringing the case to trial." … [150] On my reading of the authorities, more than simple fault on the part of the prosecution is required before a court should make an order of the kind under consideration. On the other hand, the authorities do not unequivocally say that the fault has to be flagrant or egregious. It would be sufficient in my opinion if the fault were of a serious kind.
In my opinion the Crown's failure here was more than a simple fault. When the Crown applied to discharge the jury, the significance of the evidence of the triple 0 call was stressed again and again. The Crown described it as "a fundamental part of the Crown case", "so highly probative", "powerful evidence which supports the main witness", and "critical evidence".
That was obviously the case. Mr Elmrabt was the principal witness who would give evidence of hearing the accused threaten to kill the deceased. It is difficult to think of more critical evidence than a triple 0 call made contemporaneously with the events and which corroborated Mr Elmrabt's oral evidence.
The officer in charge knew that Mr Elmrabt claimed to have made a triple 0 call from as long ago as 2015. Simply to make a computer request for all relevant triple 0 calls and thereafter not to check to see that the crucial call had been received goes beyond a simple fault.
Although Detective McCann accepted that it was her responsibility to make sure that all of the evidence was in, I consider that it is most unsatisfactory, if it is the case, that no solicitor at the DPP ever ensured that all of the evidence which would be needed at the trial was available. I would have expected that at some point a solicitor would need to ensure that the evidence was available and what evidence was there was admissible. Detective McCann is not a lawyer. No evidence was given by any person from the DPP to inform the Court what they had done in relation to this matter.
This was a significant failure on the part of the prosecuting authorities generally.
In my opinion, this failure was unfair to the accused because it resulted in the discharge of the jury. It is not necessary to reiterate my reasons for considering that that was the appropriate course. My reasons appear in Yavuz (No. 2). The accused is now in the position where he must face a second trial and that means he must outlay the necessary funds for his legal advisors so that that can occur.
In my opinion, this is a very clear case of the type which is discussed in the authorities to which I have referred.

What costs are payable?

In Issakidis Beech-Jones J reviewed the authorities on the question of what costs should be payable. His Honour said: [88] Second, the Crown submits that the relevant order should only allow Mr Issakidis a proportion of his costs thrown away because, apparently, "[n]o-one obtains 100 cents in the dollar on costs". The Crown referred to a passage from Selim at [59] in which Fullerton J observed that the "granting of a temporary stay until costs of the previous proceedings, or some part of them, are paid is not designed to punish the Crown for inadequacies [the] pre-trial or trial process". This reference to "some part" in Selim does not assist the Crown's contention. The appropriate measure of costs to include in an order on an application such as this was not explained in Selim which is understandable given that in Selim the application was refused. In Mosely the relevant order was framed by reference to the costs thrown away by reason of the adjournment with such costs to be agreed or failing agreement assessed by the District Court (Mosely at p 741). In Fisher the temporary stay operated until the prosecution paid the "reasonable costs" incurred by or on behalf of the applicant but for the entire trial. In Bucksath at [28] Stein JA considered that the conduct of the Crown in seeking an adjournment of a trial did not warrant indemnity costs. Instead Stein JA suggested an order that referred to "reasonable" costs. His Honour implicitly recognised that indemnity costs could be awarded. [89] I do not consider that the conduct of the Crown warrants an order framed by reference to an amount of costs assessed on an indemnity basis. Instead, consistent with Mosely, Fisher and Bucksath, the amount of the costs to be included in the order should be conditioned by the need for them to be "reasonable". It was not suggested that the Court could not make that assessment.
Other authorities such as R v Fisher (2003) 56 NSWLR 625; [2003] NSWCCA 41 and R v Bucksath [2000] NSWCCA 135 at [28] both refer to the payment of reasonable costs and that the costs should not be indemnity costs.
I accept the Crown's submission in relation to junior counsel. This was a relatively straightforward trial estimated to take about two weeks of hearing. The only foreshadowed legal issue was the tendency of the deceased to behave in the way that he did. The accused is entitled, of course, to have both senior and junior counsel represent him but I do not consider that the costs of junior counsel are reasonable costs which the Crown should pay.
I note that the accused's claim now omits the costs of the first day of the aborted trial.
In relation to senior counsel's fees I would allow $5,000 in total for conferences and further preparation. There is no suggestion that the trial will not proceed exactly as it did previously apart from the introduction of the triple 0 phone call by Mr Elmrabt. The total I would allow for senior counsel's fees is therefore $59,000 together with GST at $5,900.
As far as solicitors fees are concerned there is no suggestion of any pre-trial court appearances before the resumed trial. I consider that any further preparation on the part of the solicitors for the resumed trial would be minimal. I would allow in total $2,000 for conferences and preparation by the solicitor. The solicitor's costs are therefore allowed in the sum of $14,000 together with GST at $1,400.
In my opinion it would be reasonable for the Crown to pay the accused's costs in the sum of $80,000 being costs thrown away by senior counsel and solicitors in respect of the aborted trial.
Accordingly, I make the following orders: (1) There be a stay of proceedings against the accused until the accused's costs of $80,000 are paid by the Crown. (2) Nothing in order (1) prevents: (a) the fixing or alteration of the trial date; (b) compliance by the parties with the statutory requirements of the Criminal Procedure Act 1986 (NSW); (c) the making of any directions by the trial judge.

Amendments 26 November 2018 - Publication restriction removed DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 November 2018

Criminal Procedure Act 1986(NSW)ss 75, 142(1)(j), 147, 148

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